Complaint and answer having been filed, the record states, "Motion for judgment refused; motion denied; appeal by plaintiff." No judgment having been rendered, no appeal lies. Taylor v. Bostic, 93 N.C. 415; Baum v. Shooting Club, 94 N.C. 217; S. v. Hazell, (278) 95 N.C. 623; S. v. Divine, 98 N.C. 778.
Besides, a counterclaim is in the nature of a cross-action, and the motion for judgment upon the pleadings was in the nature of a motion to dismiss the cross-action. It is settled that an appeal does not lie from the refusal of a motion to dismiss an action. Mitchell v. Kilburn, 74 N.C. 483; McBryde v. Patterson, 78 N.C. 412; R. R. v. Richardson,82 N.C. 343; Plemmons v. Improvement Co., 108 N.C. 614. There are numerous other cases to the same effect. For the same reason, an appeal will not lie for a refusal to dismiss the cross-action, in which the defendant is virtually plaintiff. Indeed, the proper course of procedure is pointed out in Walker v. Scott, 106 N.C. 56, in which it is said, "If an answer is insufficient, the plaintiff can move for judgment, and, if it is refused, have an exception noted." The plaintiff should have had his exception noted and have proceeded with the trial. If the result of such trial had been in his favor, he would have desired no appeal; if it had been against him, his exception would have come up for review. The Court will not take "two bites at a cherry."
Dismissed.
Cited: Milling Co. v. Finley, post, 412; Duffy v. Meadows, 131 N.C. 33;Barbee v. Penny, 174 N.C. 573; Williams v. Bailey, 177 N.C. 40;Thomas v. Carteret, 180 N.C. 111; Duffy v. Hartsfield, ib., 152. *Page 195
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